February 2015 Louisiana Advocates President's Column
By Stephen J. Herman; Herman, Herman & Katz, LLC; New Orleans, Louisiana.
Copyright Louisiana Association for Justice.
Stella Liebeck woke up early one morning in 1992 to drive with her son and grandson to the Albuquerque airport from Santa Fe. They didn’t have time to eat breakfast, so after dropping her son at the airport, she and her grandson pulled into a McDonald’s drive-through, where she ordered a McBreakfast. After receiving her order, she asked her grandson to pull over so that she could add some cream and sugar to the coffee she was served.
Ms. Liebeck had trouble removing the top, and because the dashboard was slanted and there was no cup holder in the car, she placed the cup in her lap as she tried to pry the top open. Ms. Liebeck tugged at the lid, and the coffee gushed out over her legs.
The coffee McDonald’s served her was 180 degrees, and Ms. Liebeck, who was seventy-nine years old at the time, suffered from second- and third-degree burns. These burns were severe and covered her labia, buttocks, and inner thighs.
Ms. Liebeck was hospitalized for seven days and spent another three weeks recuperating at home. She had to be re-hospitalized later to receive skin grafts to repair some of the damage from her burns. The pain from the grafts, according to Ms. Liebeck’s daughter, was almost as severe as the original burning, and she did not think that her mother would survive.
Ms. Liebeck was practically immobilized and lost twenty pounds during this excruciating ordeal. She suffered from permanent scarring over 16 percent of her body.
The family sought to have McDonald’s pay their out-of-pocket medical and other expenses, which were about $20,000. McDonald’s offered $800.
It was revealed at trial, however, that McDonald’s had received at least seven hundred complaints of severe burning due to the scalding temperatures of the coffee it serves. While other establishments sell their coffee at 135 to 140 degrees Fahrenheit, McDonald’s actively enforced a 185-degree rule.
A McDonald’s quality assurance manager testified to this and admitted that a burn hazard exists over 140 degrees, stating that the McDonald’s coffee, as served, was not fit for consumption because it would burn the mouth and throat.
Though aware that burns would continue to occur, the company refused to change its policy, insisting “that’s the way the customers want it.” The morning drive-through customers want it that way, according to the company, so that when they get to work, the coffee is still warm enough to drink. McDonald’s own marketing research, however, indicated that the great majority of drive-through customers begin to drink the coffee while still inside their automobiles.
It has been suggested repeatedly that McDonald’s excessively hot coffee prevents people from getting free refills. By the time the in-restaurant customer is finished eating, the coffee is still too hot to drink, so the customer takes it with him. Therefore, by keeping the liquid it serves at excessive temperatures, McDonald’s saves millions in coffee
refills every year.
The jury ultimately awarded $200,000 in compensatory damages, which was capped off by a $2.7 million punitive damage award.
"It was our way of saying, ‘Hey, open your eyes,’” recalls one juror. “People are getting burned.”
Juror Betty Farnham, who at first believed the case to be frivolous, was offended by the fact that McDonald’s failed to respond to the seven hundred complaints and the statement by a corporate safety consultant that one injury in twenty-four million cups of coffee is “basically trivially different” from zero. “Each statistic is somebody badly burned,” responded the juror. “That really made me angry.” By the time the jurors concluded their deliberations, Ms. Farnham no longer thought the case was frivolous and wanted to send a message to McDonald’s corporate executives by way of a $9.6 million award.
While the judge reduced the $2.7 million punitive damage award to $480,000, even he believed that punitive damages were appropriate in this case to punish the defendant for its “callous” and “willful” conduct, and to deter McDonald’s from serving coffee at 185 degrees. Judge Scott, who describes himself as a conservative Republican, insists that the jury’s verdict was “not a runaway. I was there.”
Walter Cronkite once observed that “news” is the reporting of aberrations. Things only get reported if they’re different, he said. If they are the kinds of things that happen every day, if the events are commonplace, nobody cares.
In the context of court cases, the members of the news media do not, by and large, report the great majority of decisions, which are generally reasonable and fair. Those in the news media tend to focus, rather, on those one or two exceptions which, when reduced to a single sentence or paragraph, appear to be illogical or excessive.
If there are 10,000 cases, for example, decided by juries across the country in a given day, and 9,999 of those cases have results that seem appropriate, then the public will find out only about the one case that does not. In the court of public opinion, therefore, that one case becomes representative of the entire system. Even though, in
reality, that case is the exception.
In other cases, only half of the story is presented in order to garner support for an agenda or reform. For example, in the 1990s it was widely reported — and repeated by the usual group of special interests who call themselves tort reformers — that the Girl Scouts had to sell over eighty thousand boxes of cookies just to pay their liability insurance premiums for one year. These reports failed to mention, however, that there are over 2.5 million Girl Scouts in this country, which means that if every Girl Scout sold just one box of cookies, the scouts would have enough money to insure the organization for more than twenty-five years.
Media outlets never report that John Doe sued Giant Company X and lost. Nor do media outlets tend to scrutinize suits in which businesses sue other businesses. In fact, business-on-business litigation generally comprises the single largest category of lawsuits filed in federal court. (The U.S. Chamber itself files as many as 150 lawsuits per year.)
In 2006, seven of the top ten verdicts were commercial cases and accounted for more than $3 billion in awards – four times as much as the highest verdicts in cases filed by individuals. Several years ago, an oil company in Texas sued another oil company and recovered $263 million, including over $100 million in punitive damages. But that case did not generate one fraction of the publicity as Stella Liebeck’s $2.7 million punitive damage award.
The McDonald’s case was, in many ways, an aberration. There were seven hundred other complaints levied by burn victims against McDonald’s over the previous ten years. In fact, McDonald’s had paid more than $500,000 in previous claims related to scalding injuries, including injuries to infants and children, as well as other third-degree burns. But the only complaint that was ever brought to the public’s attention was the unusually successful one.
On the other hand, in many ways, the McDonald’s case was not an aberration. As in many reports, the evidence was edited and manipulated by insurance companies, journalists, and lobbyists to make a reasonable jury verdict appear irrational and unjust. The public was never informed about all of the evidence that was presented to the jury. The newspapers and television stations merely reported: “Woman Spills Coffee on Herself Results in $3 Million Award.”
Yes, Ms. Liebeck spilled hot coffee on herself. The jury recognized this and reduced her damages accordingly under the doctrine of comparative fault. Ultimately, however, it was the temperature of the coffee, not the coffee itself, which resulted in the harm.
Everyone spills coffee. Whether it’s due to clumsiness or inattentiveness or because the container is slippery, human beings are imperfect and they spill things. But in general, when people spill things, they get wet or they get sticky or perhaps their clothes get stained. People don’t ordinarily have to spend seven days in the hospital with third-degree burns.
Had the coffee in that foam cup not been 180 degrees, Stella Liebeck would have gotten wet, she might have gotten sticky, and she probably would have stained her clothes. It may have been her fault that she spilled the coffee on herself, but it was McDonald’s fault that she was burned.
McDonald’s sells millions of cups of coffee each and every day. It knows that, in the ordinary course of human experience, some of that coffee is going to get spilled onto its customers, especially when many of those cups are sold at drive-through windows to customers on their way to work. It also knows (certainly after seven hundred complaints) that if the coffee inside those cups is 180 degrees, its customers will suffer from second- and third-degree burns.
Even absent any fault or blameworthiness on the part of McDonald’s (and therefore the absence of any punitive damage award), Ms. Liebeck still should have been entitled to compensatory damages under the doctrine of strict or enterprise liability. After all, McDonald’s was in a better position than Ms. Liebeck to detect and eliminate the danger. McDonald’s was in the better position to spread the risk through prices or insurance. And McDonald’s accepts the purported benefits of selling extremely hot coffee and should therefore accept the responsibilities.
According to McDonald’s own safety consultant, only one of its customers is severely injured for every twenty-four million cups of coffee it serves. McDonald’s profits from the twenty-four million good cups; it should be required to pay for the one that burns.
The Stella Liebeck case and associated issues are further explored in Susan Saladoff’s documentary Hot Coffee (HBO 2011) as well as America and the Law: Challenges for the 21st Century (Gravier House press 1999).